Ngati v The Queen - [2013] NSWCCA 307

Court of Criminal Appeal

New South Wales

Case Title: Ngati v R

Medium Neutral Citation: [2013] NSWCCA 307

Hearing Date(s): 23 October 2013

Decision Date: 09 December 2013

Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Latham J at [3]

Decision:
Application for extension of time within which to seek leave to appeal sentence refused.

Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - guilty plea - specially aggravated break, enter and steal - every circumstance of aggravation in s 105A(1) Crimes Act 1900 present in offence - whether trial judge erred in approach to standard non-parole period - whether Muldrock error - whether substantial injustice would follow from refusal of application - standard non-parole period did not have determinative significance - application refused

Legislation Cited: Crimes Act 1900

Cases Cited: Abdul v R [2013] NSWCCA 247
Bolt v R [2012] NSWCCA 50
Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120

Category: Principal judgment

Parties: Mata Glassie Ngati - (Applicant)
Regina - (Crown Respondent)

Representation

- Counsel: Counsel:
C Bruce SC - (Applicant)
N Noman SC - (Crown Respondent)

- Solicitors: Solicitors:
Legal Aid NSW - (Applicant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2008/00003573

Decision Under Appeal

- Before: Sides QC DCJ

- Date of Decision: 09 April 2009

- Court File Number(s): 2008/00003573

JUDGMENT

HOEBEN CJ at CL : I agree with Latham J.
JOHNSON J : I agree with Latham J.
LATHAM J : The applicant, Mata Glassie Ngati, applies for an extension of time within which to seek leave to appeal against a sentence imposed upon him by Sides QC DCJ on 9 April 2009 for a specially aggravated break, enter and steal committed on 7 January 2007.
The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years. Following the applicant's plea of guilty, he received a non-parole period of 6 years and 7 months, commencing 19 September 2007 with a balance of term of 2 years and 5 months expiring on 18 September 2016.
There is a single ground upon which the applicant seeks leave for an extension of time within which to appeal, namely that the judge erred in his approach to the standard non-parole period. This ground is now pressed on the basis of the decision in Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120.
For the reasons identified by this Court in Abdul v R [2013] NSWCCA 247, the applicant must establish that a substantial injustice would follow if the Court refused the grant of the extension of time and failed to deal with the appeal on its merits. In effect, this requires the Court to assess the prospects of success of the appeal, having regard also to the length of the delay, the reasons for it and the interests of the community.
The applicant has not previously lodged a notice of intention to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ngati v The Queen

Details

AGLC: Ngati v The Queen [2013] NSWCCA 307
Case: [2013] NSWCCA 307
Decision Date: 09 December 2013

CaseChat Overview and Summary

Ngati applied for an extension of time to seek leave to appeal against his sentence for a crime that involved breaking, entering, and stealing under particularly aggravating circumstances. The respondent, the Crown, opposed the application. The case was heard in the High Court of Australia. The legal issues that the Court had to determine were whether the trial judge erred in calculating the standard non-parole period, whether the approach taken by the trial judge was in error according to the decision in Muldrock, and whether a substantial injustice would result from the refusal of the application. The Court found that the trial judge did not err in calculating the standard non-parole period, and that the approach taken was not in error according to Muldrock. The Court further found that no substantial injustice would result from the refusal of the application. The standard non-parole period did not have a determinative significance in this case. The application for an extension of time was therefore refused.

Orders